CHICAGO, IL -- The American Civil Liberties Union of Illinois today asked the Supreme Court to review the constitutionality of a deceptive and dangerous Illinois law banning many methods of abortion.
The ACLU's legal brief, filed on behalf of Chicago's Hope Clinic and a group of prominent local obstetricians and gynecologists, said that Illinois's "partial birth abortion" law makes it a crime for physicians to perform some of the most safe and most common methods of abortion.
"There can be no doubt that the Illinois law threatens women's health in order to advance a narrow, ideological agenda," said Colleen K. Connell, Director of the Illinois ACLU's Reproductive Rights Project and lead counsel in the case. "The Illinois law strips away from qualified, caring physicians the capacity to make a medical judgment about which abortion procedure would best protect the life, the health and the future fertility of their patients. In short, it represents the triumph of politics over medicine."
The ACLU petition urges the Court to consider the Illinois law's excessive burden on a woman's right to access safe, legal abortion procedures, as well as the substantial uncertainty the law raises about the continued legality of many safe methods of abortion, including those used early in a pregnancy. The ACLU also asks the Supreme Court to review the matter because the Seventh Circuit's decision upholding the Illinois law is out of step with opinions of the vast majority of state and federal courts that have considered the nearly identical statutes adopted in 29 states.
"The physicians we represent hope the Supreme Court will consider the substantive constitutional and legal issues raised by this ominous law," said Connell. "The deceptive abortion ban threatens the health and safety of women across Illinois. It also threatens doctors with criminal prosecution and loss of their license to practice medicine if they provide their patients with the most appropriate medical care."
Connell said that the ambiguity of the law, and the vague terms used to describe procedures that obstetricians commonly use, leaves doctors without clear guidance as to what is criminal under the statute.
"The law's vagueness means that law enforcement officials and state courts may interpret its provisions to encompass many of the safest, most commonly used procedures utilized by physicians in the early weeks of pregnancy," she explained. "Many physicians fear they will be forced to stop using these abortion procedures, to the extreme detriment of their patients' life and health."
The ACLU's brief also points out that the Illinois law violates previous Supreme Court holdings that any restrictions on particular abortion procedures must contain an exemption that allows a physician to perform an otherwise banned procedure when necessary to preserve a woman's life or health. The law contains no health exemption and an ineffective life exemption, although physicians have testified that abortions are sometimes medically necessary when a woman confronts a major health crisis like heart disease, cancer or diabetes.
The ACLU's brief was filed in support of two combined Illinois and Wisconsin cases, titled Hope Clinic v. Ryan (Illinois) and Planned Parenthood and Christensen v. Doyle (Wisconsin). The Wisconsin health providers today filed separate petitions with the Court.
Last year, federal district courts heard the cases from Illinois and Wisconsin separately. An Illinois district court ruled that the state's law was unnecessarily vague, unduly burdensome and failed to provide an adequate health or life exemption for women; a Wisconsin district court judge upheld that state's similar law. Sitting en banc, the Seventh Circuit Court of Appeals heard argument in both cases, and in a closely divided (5-4) ruling found both statutes constitutional.
The Court's decision conflicts dramatically with the findings of the vast majority of other federal courts considering these issues, including the Eighth Circuit Court of Appeals, which found unconstitutional nearly identical statutes enacted in Arkansas, Iowa and Nebraska.
Writing a pointed and direct dissent in the Seventh Circuit decision, Chief Judge Richard Posner noted the obvious danger for physicians who risk criminal prosecution, loss of license and a lengthy prison sentence under the Illinois law.
Judge Posner summed up his argument by asking: "What physician would be fool or hero enough to risk a criminal prosecution in order to explore the precise meaning" of the broadly worded ban adopted by the Illinois legislature?
In late November 1999, Supreme Court Justice John Paul Stevens issued an order preventing enforcement of both the Illinois and Wisconsin laws at issue in this matter until the Court could consider the petition filed today.
Volunteer cooperating attorneys from the Chicago law firm of Sonnenschein, Nath and Rosenthal are assisting staff attorneys from the ACLU of Illinois in this matter.
The ACLU of Illinois' Supreme Court brief will be posted online shortly. The ACLU of Illinois's previous statement on the matter is online at http://archive.aclu.org/news/1999/n113099d.html.